Michael Hershkop

In a medical malpractice action concerning obstetrical negligence resulting in a child's severe brain damage, the jury found the defendant doctors breached the standard of care and caused the injuries.

The defendants brought a motion under Rule 52.08(1) arguing there was no evidence to support the causation finding, or alternatively, that the jury's answers on causation were unresponsive.

The trial judge found there was some evidence to support causation, but held that the jury's answers on causation were fatally flawed because they merely repeated the standard of care answers (as improperly suggested by plaintiffs' counsel) and failed to explain how the negligence caused the brain damage.

As a result, the trial judge refused to enter judgment on the verdict and ordered a new trial.

Following a successful medical malpractice trial resulting in a $5.3 million judgment for the plaintiffs, the court assessed costs.

The plaintiffs had beaten their $4.5 million offer to settle, entitling them to substantial indemnity costs from the date of the offer.

The court considered the complexity of the case, the extensive expert evidence required, and the proportionality of the costs to the recovery, ultimately fixing costs at $2,201,259 inclusive of fees, disbursements, and HST.

Following a trial judgment in a medical malpractice action, the court issued supplementary reasons to address pre-judgment interest and adjustments to future pecuniary losses.

The parties reached an agreement on these issues, excluding costs.

The court issued an order revising the total judgment granted in favour of the plaintiffs to $5,568,393.00, inclusive of pre-judgment interest and adjusted future pecuniary losses.

The minor plaintiff suffered a severe hypoxic-ischemic brain injury at birth due to the admitted negligence of the defendant hospital's nurses in artificially rupturing the membranes.

The defendant conceded the breach of the standard of care and that it caused the plaintiff's ataxic hypotonic cerebral palsy, but argued her cognitive and behavioural issues were caused by genetically inherited ADHD.

The court rejected the genetic ADHD theory, finding the birth injury was the sole cause of all the plaintiff's physical, cognitive, and behavioural deficits.

The court awarded over $5.2 million in damages, including $250,000 for general damages, $1.88 million for future loss of income, and extensive future care costs for therapies, supported independent living, and home modifications.